Q: Our community is a resident mobile home park owned and run by the members. Our board of directors meets each month and residents attend the meeting. When a motion is made by the board and seconded by the board, the discussion (as per Roberts Rules) is conducted between directors prior to the vote by the board. We are being told the discussion should be open to residents before the vote. Please advise us as to the correct procedure.
A: The one thing missing from your question is the type of association you operate, condominium, homeowners association (HOA), or cooperative. However, the procedures referred to can be used for any association. What I cannot provide you with is the particular statute that allows this procedure because I do not know which statute you fall under.
By going to the particular statute section discussing board meetings, you can find the area that says any member is allowed to talk for a minimum of three minutes on any agenda item. It does not require a change to your documents or bylaws.
The statutes also say that the board can establish policies to govern the right for the members to discuss an agenda item. In the past I have suggested that this policy require that any member wishing to discuss an agenda item provide to the secretary a written note before the meeting. At the point the agenda item is called, someone from the board should make a motion, second the motion and begin discussion by board members. Then the chairperson should instruct the secretary to read the names of members wishing to discuss the agenda item. Each would be allowed three minutes in accordance with the notes received by the secretary. Once the members have spoken on the agenda item, the board may make brief comments before the vote.
The board should establish the policy and discuss it at the next meeting, to be voted on at the following meeting. Once it’s approved it should be circulated to the members. Unlike your documents or your past procedures, any policy can be modified at any future meeting.
Q: I am living in a 10-unit condominium association and our new board decided to rewrite and amend our documents at a hefty expense done by a lawyer. All information nowadays can be retrieved via Internet and the Florida Statutes 718 that are easily read. Do the Florida Statutes prevail over instructions in the documents?
A: I rarely feel that amending documents is the right thing. Once in a while there may be something that’s in error that needs to be adjusted. Remember that owners purchased a condominium unit with an understanding that they would be governed by existing documents. If you amend or change, there is a strong possibility that you will infringe and/or eliminate certain rights by some owners. Unless there are critical errors, the expense of amending or changing the documents is, in many times, unnecessary.
There is a simple and inexpensive way to make changes and that would be for the board to create policies. Such policies do not require such huge expenses as modifying your documents. Policies are flexible and can be changed or modified from board meeting to board meeting if required.
Yes, you are correct the statutes in most cases will override the documents. The one good thing that the board is doing is having an attorney draft, review, and work with the board of directors.
Q: I am the newly elected president in a 10-unit building and in reviewing the records I have discovered some past irregularities in financial records. The previous president, who also held the office of treasurer, apparently borrowed $10,000 from the property manager. There was no board meeting or notification of the unit owners regarding this action.
This loan occurred: The president did not pay his maintenance for nine months and, along with other delinquencies, it totaled $15,000. He neglected necessary repairs, causing the condominium to have excessively high water bills.
He also failed to pay the building insurance at the beginning of hurricane season, leaving the condominium uninsured and we were not able to get reinstated with our previous company The records display frequent shutoff notices for water, electricity, waste removal, insurance premium and other services.
The property manager has not produced any documentation as to how the agreement was reached to borrow the money. It appears that the president borrowed money for his own benefit so that he would not have to pay his maintenance or be responsible for any increase in maintenance or special assessments. Is the past president responsible for the $10,000 loan? Did he violate his fiduciary responsibility? What, if any responsibility does the property manager (who is a real estate agent) have?
A: What happened to the other directors? Apparently they allowed the president to take total control of the association. Yes, there were violations and improper actions by the president but the other directors assume the responsibility as well.
What you have is a single person acting for the condominium with no checks or verifications. This is a common problem in many communities. Members/owners fail to take their responsibility to monitor the board and its actions.
As to fiduciary duties, it appears that the president has violated that responsibility, but the question is, was it illegal? With the information provided it appears to me that it was not an attempt for personal gain. As to the manager, you should have had a licensed manager (CAM), but a 10-unit condominium is not required to engage one.
I have too little information to say who is responsible for the $10,000 loan. I’m not sure if the real estate agent manager has violated any laws. That would be answered by legal authorities, including an association attorney.
I would suggest that you document all evidence of the improper actions and discuss the matter with the past president and the manager. Once you have all the actions and answers, I would suggest you publish a report to the other members. I would not suggest that you take legal action unless you find fraud. Immediately dismiss the manager and engage a properly licensed one.